People Ex Rel. Richardson v. Cobb

SMITH, C.

he defendant was appointed, by the board of supervisors, city justice of the city of San José, on the death of the incumbent, November 12, 1900, and has since continued in occupation of the office. His predecessor had previously been appointed, on the death of the original incumbent, one Gass, and prior to the appointment of defendant, November 22,1900, the board had ordered an election to fill the unexpired term, to be held November 6th of the same year. At this election the relator was elected to the office, and "qualified, but was not permitted to take possession. The suit was brought by the attorney-general to oust the defendant from the office, and also to establish the title of the relator. The decision of the court below was against the defendant and in favor of the relator. Judgment was entered accordingly, and the defendant appeals.

It is contended by the appellant that the case is governed by the provisions of section 111 of the Code of Civil Procedure, and not—as held by the lower court—by the provisions of subdivision 19 of section 25 of the County Government Act of 1897 (Stats. 1897, pp. 452, 463); or if otherwise, that under the latter act there was no vacancy to be filled at the general election of 1900. By the former statute it is expressly provided that in case of vacancy in “the office of a justice of the peace,” an eligible person shall be appointed by the board of supervisors “to hold office for the remainder of the term”; and this provision has been held to apply to city justices, as well as others.

(People

v.

Sands,

102 Cal. 16.) By the latter statute, the appointment is “ for the unexpired term, or until the next general election.” It was held by the lower court that the code provision was repealed by the provision of the latter act cited; that the term of office of the defendant expired at the next general election following his appointment; and consequently, that the election of relator at that election was valid.

[76]

But precisely the same point was involved in the case of

People

v.